The opinion of the court was delivered by: Louis F. Oberdorfer United States District Judge
Plaintiff Eastern Trans-Waste of Maryland, Inc. ("Eastern") moves for partial summary judgment on its procedural due process claim against defendant District of Columbia ("the District"). Defendants the District and Denzil Noble (collectively, "defendants") cross-move for summary judgment as to the entire Second Amended Complaint-that is, as to both Eastern's substantive (Count One) and procedural (Count Two) due process claims.*fn1
Eastern is the operator of a solid-waste transfer station in the District of Columbia. It is required to obtain from the District a building permit to make physical improvements to its station. When Eastern applied for such a permit in 2003, defendant Noble was the Acting Zoning Administrator and/or the Administrator of the Building and Land Regulation Administration of the D.C. Department of Consumer and Regulatory Affairs ("DCRA"), an agency through which the District issues building permits.
Eastern alleges that defendants violated the Constitution by delaying the issuance of the permit. Its Second Amended Complaint bases relief principally on the ground that the District deliberately and improperly delayed granting its permit application for the purpose of putting Eastern out of business and shifting profits from private solid-waste transfer stations (like Eastern's) to District-owned stations. See Second Am. Compl. ¶ 2; Pl.'s Opp'n to Defs.' Mot. for Summ. J., at 29 (Oct. 11, 2006). The Complaint seeks, among other things, compensatory and punitive damages.
The court will deny Eastern's motion for partial summary judgment and grant defendants' motion for full summary judgment, for the reasons that follow.
From 1992 to April 3, 2006, Eastern operated a solid waste transfer station at 1315 First Street, SE, in the District of Columbia. In June 2001, the D.C. Zoning Commission began the process of rezoning Eastern's property from an industrial area to a residential/commercial area. The District permitted Eastern to continue its solid waste operations as a nonconforming use, provided that it did not expand its facility. However, in September 2004 the District selected the area in which Eastern's facility was situated as the site for the future Nationals' baseball stadium, pursuant to which Eastern's property was taken by eminent domain, and the facility's operations ceased, on April 3, 2006. See Second Am. Compl. ¶¶ 9, 12-16.
On October 10, 2003 (prior to the stadium site selection), Eastern had applied to DCRA for a building permit to make certain improvements to its facility, estimated to cost $400,000. Initially, the permit was set for approval by DCRA. However, Noble, who was then the Administrator of DCRA's Building and Land Regulation Administration, requested that Eastern submit an Environmental Impact Statement (EIS), citing a D.C. Code provision that required an EIS for any "substantial modification" to an existing solid waste facility. See Pl.'s Mot. for Summ. J., Ex. 8; D.C. Code § 8-109.11. Disputing the characterization of its improvements as a substantial modification, Eastern nonetheless attempted to comply with the request by filing with DCRA an Environmental Impact Screening Form (EISF) instead of the more laborious EIS. DCRA forwarded the EISF to the appropriate municipal agencies, including the D.C. Office of Planning. See Second Am. Compl. ¶¶ 17, 22-25.
In May 2004, a staff member in the Office of Planning wrote an internal memorandum to DCRA expressing concerns about Eastern's application and EISF. She wrote that Eastern's proposed construction would impermissibly and negatively impact the surrounding area. Her analysis asserted that "[a]fter completion of the renovation project, approximately 10 new employees with between three to five additional vehicles will be added to the site. The proposed project will substantially alter the facility." However, it is undisputed that no new employees or vehicles would be permanently involved. See id. ¶ 32; Pl.'s Mot. for Summ. J., Ex. 14.
Moreover, a staff member to the director of the District-owned solid waste facilities also objected to summarily issuing the permit. He stated that in his past experience with Eastern, it had misrepresented a major alteration to its facility as a minor one. He recommended a careful review and referral of the permit to the Zoning Commission. See Second Am. Compl. ¶ 34; Pl.'s Mot. for Summ. J., Ex. 17.
Eastern learned of the error in the May 2004 memorandum and attempted to correct DCRA of this erroneous impression. Without acknowledging the error, DCRA viewed the proposed improvements as an "enlargement" of the facility, requiring a variance from BZA. See Second Am. Compl. ¶¶ 41-43.
In December 2004, Eastern appealed DCRA's decision to the BZA. It sought reversal of DCRA's determination that the grant of Eastern's construction permit required a variance and/or an order directing DCRA to grant the permit. In March 2005, at a hearing before the BZA, DCRA claimed that it objected to the building permit because it constituted a significant "structural alteration" to the facility, not because it was an "enlargement" or "expansion." On May 10, 2005, the BZA rejected this argument and reversed DCRA's decision to deny the permit. See id. ¶¶ 44-46.
Meanwhile, on January 10, 2005, in the midst of its appeal to the BZA, Eastern filed the original complaint in this court against the District and various officials, including Noble. On February 15, 2005, defendants filed a motion to dismiss and/or for summary judgment. On January 23, 2006, this court dismissed several of the claims and parties and deferred ruling on the rest of the claims until after discovery. See Mem. Op., at 11 (Jan. 23, 2006) [dkt #22]. The court's decision left Eastern to pursue the following claims into discovery:
- Count One: A substantive due process claim against the District and Noble*fn2 for compensatory damages (e.g., lost profits) resulting from the delay in issuing the permit.
- Count Two: A procedural due process claim against the ...